CONSTITUTIONALISM: Simply unacceptable!

“We restored constitutionalism and the rule of law. That is why judges can rule like this against the government. There were times when if a judge made such a ruling, he would not live to see tomorrow. The ruling will not work. It is simply unacceptable!” thus asserted His Excellency the President of Uganda on 27 June 2000, in response to the constitutional court ruling that nullified the 2000 referendum.

Constitutionalism is a concept in political theory that explains that a government does not derive its power from itself, but gains its power as the result of there being a set of written laws that give the governing body certain powers. Zahara Nampewo in her piece Constitutionalism in Uganda: Challenges in Observance, defines Constitutionalism to mean an idea that government can, and should, be legally limited in its powers, and that its authority depends on observance of these limitations. This means that Government officials, whether elected or not, cannot act against their own constitutions if they see fit. Actually in cases where a government is entitled to change the very terms of its constitutional limitations at its discretion, it is questionable whether there would, in reality, be any constitutional safeguards for the public.

In constituting and specifying these limits or lack of them, each state must have three  basic arms/forms of government power: legislative power (making laws), executive power (implementing laws) and judicial power (adjudicating disputes under laws). And these arms are expected to serve as independent institutions.

The level of independence and adherence to the specified limitations however are a story for another day in Uganda; call it farfetched.  Several reports both media and research indicate that huge constitutional challenges have confronted the Ugandan government since 2004. It is evident that the NRM government has faced a crisis of legitimacy and credibility on a number of issues arising from court judgments and its army’s involvement in conflict as well as politics.  The gross human rights violation in northern Uganda by the army, unlawful detentions, unfair trials and torture  and the continued  expenditure of government on arms while its people  continue to live and suffer extreme poverty and social injustice, are all evidence of the huge constitutional challenges.

Although the NRM government has relatively endeavored to discipline and professionalize the army, its continued role in elections, presence in parliament and appointment to fill political positions will always raise questions. The recent appointment of Gen. Aronda Nyakairima as Min. of Internal affairs inspite of the fact that he is still serving in the army, according to most right thinking Ugandans served as the last nail in the coffin/Uganda’s Constitution.

One writer is quoted to have written thus; “If murdering one’s father is referred to as fratricide, and one’s mother as matricide, what would best describe the act, omission or attempt of killing a timeless document whose writing and birth one participated in? It would have to be a variant/modification of infanticide, or, to try an absurd conjugation, “Constitucide”!

As if this is not enough, the Defence Minister, Dr Crispus Kiyonga, in response to people’s concerns on the army’s increased involvement in non security departments in the July 23^rd Daily monitor is quoted to have said “there is a possibility that the military will step back into political control if politicians continue ‘not showing seriousness that they can solve the problems facing the country”. Logically a call for a military takeover of government contravenes the Constitution. It is therefore evident that the law and constitutional procedures as stipulated in the 1995 Constitution and agreed upon by the people of Uganda through elected representatives for purposes of national interests, have been negated. (http://www.monitor.co.ug/OpEd/Commentary/Constitutionalism-and-landmark/-/689364/1676820/-/1dnc2wz/-/index.html)

Cases of failed constitutionalism in Uganda apparently appear to be endless. The continued interference in judicial processes by the Executive. This has been witnessed in several forms; the President’s refuting of court rulings, re-appointment of over age Court Judges (current appointment of the 70 year old Justice Benjamin Odoki), influence of court rulings, denial of justice to some suspects, and the famous attack of the High court by the black Mambas in 2005.

In addition to this is the unrealistic review of the constitution in 2004 by the Constitution review commission (CRC) and the bribing of some MPs with 5million shillings each to support the No Term Limits project. To the president dispensing term limits was a strategy to give him further opportunities for remaining in power. Although this idea of lifting term limits was widely protested by most Ugandans it was upheld anyway through force and oppression. It goes without saying that this matter has had far reaching repercussions on the state of constitutionalism and observance of rights in Uganda.

Closure of media houses, arrest of journalists, the existence of the death penalty plus the continued allegiance of public officials to the president rather than to the state; all point to a “raped” constitutional system. Whereas it is true that these officers are appointed with the approval of the President, it is also doubted if the same servants can question the actions of the President that are not in the national interest.

I regret to note that the Ugandan Constitution has been rape, murdered and or abrogated. It doesn’t matter if part of its contents have been upheld. Like Justice Kanyeihamba puts it, “our Constitution doesn’t say that if you break the Constitution in one area and it is not the whole Constitution, then that is okay.”

Wholesomely at this rate, one would not be wrong to think of Uganda as a state without a constitution.  God bless our Leaders, God bless Uganda. For God and my Country!